Do Athletes Need to Know They Are Using Prohibited Substances in Order to Violate Anti-Doping Rules?

  Doping – taking banned substances in order to enhance sporting performances – is an issue that many are aware of at the moment due to the much publicised test-data leak placing professional athletics under the spotlight. The amended World Anti-Doping Association Code that came into force in January 2015 (‘The Code’) emphasizes that it is the athlete’s personal duty to ensure they do not take any prohibited substances, with Article 2.1.1 of The Code stating: “Accordingly, it is not necessary that intent, Fault, negligence or knowing Use on the Athlete’s part be demonstrated in order to establish an anti-doping rule violation under Article 2.1. [Author’s emphasis]” This duty even extends to an athlete’s entourage and if found to have not taken sufficient steps to vet staff, liability could arise even for substances administered by staff without the knowledge of the athlete. The Court of Arbitration for Sport (‘CAS’) has in numerous cases upheld the strict liability of Article 2.1, making it clear that a lack of knowledge is not an automatic defence. Even if the court finds no significant fault or negligence, the consequences can range from a reprimand to a maximum 2 year ban. Where the athlete falls within that range depends on their degree of fault, therefore it is crucial that athletes research items such as supplements thoroughly, question manufacturers and make sure their products have been fully tested for any substances found on prohibited lists. Databases such as Informed Sports should be a crucial part of any research. The case of UKAD v Gareth Warburton and Rhys Williams makes this clear as the two athletes were given six and four month bans respectively for taking a substance without any knowledge or intention to cheat. The bans were given as they were found to be at fault due to their ineffective research, Warburton’s ban slightly longer as he didn’t review the Informed Sports website at all. William’s had searched for the product on Informed Sports but when he asked the manufacturer why it wasn’t listed, took the responses at face value. The decision highlights the stringent application of the code, with superficial research not enough to account for a lack of knowledge and intent. Although the media is concentrating on Athletics, given such bodies as World Rugby, the International Cricket Council and the Football Association are all adherents to The Code it is important that all athletes take note. Failure to do so could mean a long spell on the side-lines and a costly battle to rebuild a damaged reputation. Rugby League player Sean Penkywicz is the most recent example of The Code’s strict application, receiving a two-year ban for testing positive to a substance which was only found after a negative sample in 2014 was re-tested. Sean had no knowledge of the re-tests and told the media that he had “not knowingly injected myself with drugs”, but that he was “now legally advised to accept a two-year ban which effectively ends my career…”

Published August 27, 2015

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